Insights into Editorial: Plan B for free speech

Over the decades, the Indian Supreme Court has developed a rich and robust jurisprudence of free speech and, with a few exceptions, has generally ruled in favour of free speech against repressive measures. This was most recently evidenced in the famous Shreya Singhal judgment that held Section 66A of the Information Technology Act to be in violation of Article 19(1)(a).

And yet we persistently hear of cases, including the ongoing sedition case against students of JNU, where the law is used to harass or silence any form of critique or dissent.

What is sedition?

‘Sedition’ is an offence incorporated into the Indian Penal Code (IPC) in 1870. Section 124A of the IPC defines sedition and says:

Whoever by words either spoken or written or by signs or by visible representation or otherwise brings or attempts to bring into hatred or contempt, the government established by law; or

Whoever by the above means excites or attempts to excite disaffection towards the government established by law, has committed the offence of sedition.

What has Supreme Court ruled?

The Supreme Court has persistently held that for the offence of sedition to be satisfied, there has to be a causal relationship between speech and acts of violence, and mere speech, regardless of how subversive it is, does not amount to sedition.

Concerns:

In the recent years the ease with which complaints of sedition or speech that allegedly hurts the sentiments of a community are brought before the police and criminal action initiated against the speakers is a cause of worry.

Is it time to scrap these laws?

People concerned with the misuse of these laws often ask for them to be repealed or struck down on the grounds that they violate Article 19(1)(a).

But herein lies the problem. Most of these laws have, in fact, been challenged and their constitutional validity has already been upheld.

Section 295A (“deliberate and malicious acts, intended to outrage religious feelings of any class by insulting its religion or religious beliefs”) was found to be constitutional in the Ramjilal Modi case (1957) and Section 124A (sedition) was held to be constitutional in the Kedarnath case (1962).

Both these were Constitution benches and even though the effect of these judgments has been subsequently watered down through more liberal judgments, these cases remain the law of the land.

Is the government willing to scrap such laws?

While one wishes that these laws would be trashed in the future, it is unlikely that Parliament will repeal them in a hurry.

In the case of sedition, the provision is beneficial to every government regardless of its ideology, and in the case of hate speech, the colonial self-fulfilling prophesy that Indians are “emotionally excitable” subjects sadly remains the persistent myth.

The, how can we tackle this problem?

In case of free speech, focus on procedural reforms and safeguards that at least render the malicious use of these laws more difficult.

All speech-related offences should be made bailable offences; this would lessen the harmful impact of using arrest and custody as a way of harassing anyone exercising their rights under Article 19(1)(a).

The offences should be made non-cognisable so that there is at least a judicial check on the police acting on the basis of politically motivated complaints.

In the case of offences under Sections 153A (“promoting enmity between different groups on grounds of religion, race, place of birth, residence, language, etc, and doing acts prejudicial to maintenance of harmony”) and 295A of the Indian Penal Code, it is mandatory under Section 196(1) of the Code of Criminal Procedure to obtain prior sanction of the government before taking cognisance of the offences. This needs to be extended to the offence of sedition under Section 124A.

In the case of hate speech, it is important to raise the burden of proof on those who claim that their sentiments are hurt rather than accept them at face value.

And finally, it is crucial that courts begin to take action against those who bring malicious complaints against speech acts.

Conclusion:

Free speech, even though imperfect in some aspects, at least provides us with a platform to challenge unreasonable acts of the state. The real challenge is how we tackle lumpen threats that also expertly use the law in strategic ways. The true test of a democracy lies in how much it can tolerate disagreement and even speech that we strongly disagree with. But despite the Supreme Court affirming our right to disagree and dissent in substantive law, the ease of filing complaints and the ever-looming threat of police action undoes procedurally what we have substantively. If we are to regain our fundamental rights, then it might well begin with procedural reforms that support rather than negate free speech.